Central Administrative Tribunal - Delhi
Om Prakash Sharma vs M/O Human Resource Development on 9 October, 2018
Central Administrative Tribunal
Principal Bench, New Delhi
O.A.No.956/2015
Order reserved on 1st August 2018
Order pronounced on 9th October 2018
Hon'ble Mr. K.N. Shrivastava, Member (A)
Hon'ble Mr. S. N. Terdal, Member (J)
Om Prakash Sharma, TGT (Retd.)
Aged about 66 years
s/o late Sh. Het Ram Sharma
r/o WZ-178, Gali No.11, Shiv Nagar
New Delhi
..Applicant
(Mr. M K Bhardwaj, Advocate)
Versus
Union of India & others through
1. The Secretary
Ministry of HRD
Shastri Bhawan,
Department of School Education & Literacy
New Delhi
2. The Chief Secretary
Govt. of NCT of Delhi
New Secretariat, IP Estate
New Delhi
3. The Director
Directorate of Education
Govt. of NCT of Delhi, Old Secretariat
Delhi
..Respondents
(Nemo for respondent No.1 -
Mr. Saurabh Chadda, Advocate for Mr. Rohit Bhagat, Advocate for
Respondent Nos. 2 & 3)
ORDER
Mr. K.N. Shrivastava:
The applicant retired on 31.12.2008 from the post of TGT (Natural Science) in the Directorate of Education, Govt. of NCT of Delhi (respondent 2 No.3). At the relevant point of time, he was posted at Govt. Co-Ed, SS Raghubir Nagar, Delhi when an FIR No.107/05 dated 17.02.2005 came to be registered against him and others at P.S. Samaypur Badli, Delhi. He was placed under suspension vide order dated 18.02.2005. He was subjected to disciplinary enquiry (DE) proceedings by issuing Annexure A-3 memorandum of charges dated 15.12.2008, which contained the following two articles of charges:-
"Article-I Whereas, the said Sh. Om Prakash Sharma, TGT (N.Sc.) working in Govt. Co-ed, MS, Raghubir Nagar, New Delhi, involved in a criminal case under section 376G/506/34-IPC which was registered vide FIR No.107/05 dated 17/02/05 in Police Station, Samay Pur Badli, Delhi. The said Sh. Om Prakash Sharma, TGT (N. Sc.) was arrested by police on 17.02.905 and remained in custody till 21/02/06.
Thus, the aforesaid misconduct on the part of Sh. Om Prakash Sharma, TGT (N.Sc.), is unbecoming of a govt. teacher violating sub rule 1 of rule 3 of the CCS (conduct) Rules, 1964. Article-II Whereas, by indulging himself into the incidence of gang rape, the said Sh. Om Prakash Sharma, TGT (N.Sc.) has shown his misconduct unbecoming of govt. teacher who is role model to their students.
Thus, the above said misconduct on the part of Sh. Om Prakash Sharma, TGT (N.Sc.) is in violation of sub rule 1 of Rule 3 of the CCS (Conduct) Rules, 1964."
2. The charge memo also contained statement of imputation of misconduct or misbehaviour in respect of articles of charges framed against the applicant, which alleged that the applicant, along with three others, took a female student to a PWD rest house near Industrial Area, Badli, Delhi and all the four persons, including the applicant, raped her. The FIR was filed on the basis of complaint of the victim. Since the applicant had 3 retired during the pendency of the DE proceedings, the DE was continued under Rule 9 of CCS (Pension) Rules, 1972.
3. Enquiry was conducted against the applicant pursuant to the Annexure A-3 charge memo. The enquiry officer (EO), namely, Mrs. Bimla Yadav, Principal, SKV B Block, Janak Puri, New Delhi, vide her report dated 12.02.2011, concluded that the charge against the applicant is not substantiated (pp.72-74). The relevant portion of the EO's report is extracted below:-
"9. In the FIR and Police charge sheet he was stated to be involved in gang rape offence but As the main witness/ complainant was not available to depose her evidence and there is no other evidence connecting Charged Official with the offence, the charge of involving into gang rape under article II of the charges is not substantiated in the present enquiry."
4. In the meanwhile, the applicant had been acquitted of the criminal charge by the Court of Mr. Rakesh Tewari, Additional Sessions Judge-06 (Outer), Rohini Courts, Delhi vide his judgment dated 21.12.2010. The relevant portions of the judgment are extracted below:-
"8. All the said oral and documentary evidence would have been put to the accused as incriminating evidence against them if the prosecutrix PW2, the chowkidar of the rest house PW3 and mother of the prosecutrix PW8 have supported the case of the prosecution because of its corroborative nature.
xxxx xxxx xxxx xxxx
11. PW8, mother of the prosecutrix, deposed that in the year 2005 she was residing with her husband and children at H.No.WZ-53, Raghubir Nagar, Chaukhandi, Khayala, Delhi and that she had 4 children and her daughter, the prosecutrix, was the youngest one and the prosecutrix was not attending any coaching classes in the year 2005 and that after passing the VIth class the prosecutrix left her studies and remained in the house and prosecutrix never told her about any sexual assault committed on her by any person in the 4 month of February 2005 nor she had taken her daughter for medical examination before any doctor nor she had gone to the PS. After getting her declared hostile, PW8 was extensively cross examined on behalf of the State wherein she denied to have made any statement to the police. She also denied her any son by the name of Manoj (the said Manoj has been cited as a witness who remained untraced throughout the case as per repeated reports on the summons).
12. In the said circumstances there remained no incriminating evidence against the accused to be put to them and accordingly, the statements of the accused u/s 313 Cr. PC were dispensed with.
13. In view of the said hostile deposition of PW2, PW3 and PW8, and in view of the fact that there is no other evidence connecting the accused with the offence, the benefit of doubt is given to the accused and they are acquitted of the charges u/s 376/506/34 IPC. Their PBs and SBs are hereby discharged. The file be consigned to the Record Room."
5. The disciplinary authority, however, did not agree with the findings of the EO and decided to issue the disagreement note dated 28.04.2012 (pp.42-43). The disciplinary authority, in its disagreement note, had taken cognizance of the acquittal of the applicant giving him benefits of doubt; the relevant portion of which is extracted below:-
"And whereas, Smt. Bimla Yadav, Principal conducted the inquiry into the matter and submitted inquiry report dated 12.02.2011 concluding Article-I as proved and Article-II as not proved.
And whereas, before submitting the case of Ministry of HRD, Govt. of India for further action u/r 9 of CCS (Pension) Rules, 1972, the inquiry report was sent to Sh. Om Prakash Sharma vide memorandum dated 15.04.2011 for making representation, if any within 15 days. But, no representation in this regard has been received till date.
And whereas, from the perusal of available record and inquiry report dated 12.02.2011 in this case it is observed that the Inquiry Officer has based her findings on acquittal of C.O. vide judgment of ASJ-VI (Rohini Court) and non-appearance of Ms. Shipra (PW-I) during inquiry proceedings. From the perusal of Para 13 of the said judgment, it is obvious that the acquittal was not on merit but on benefit of doubt given to the accused, on being hostile of Ms. Shipra & her mother.5
And whereas, it is pertinent to mention that the court take a view on all the evidences connecting the accused with the offence to arrive at a conclusion beyond doubt, whereas in the disciplinary proceedings, the enquiry is concluded on the basis of preponderance of probability.
And whereas, the non-appearance of Ms. Shipra during the inquiry proceeding to depose her statement appears to be consequent of the extraneous influence by the accused persons on her. However, the statement on 17.02.2005 before police, given immediately after the incidence seems to be without any fear and coercion.
And whereas, such misconduct on the part of a teacher shatters the very base of sacred relationship between a teacher and a pupil and erodes trust and sanctity attached with the teaching profession. It was further opined by the DOV that this matter calls for disagreement note.
And whereas, after carefully considering the facts and circumstances of the case, the charge of indulging into the incidence of gang rape of Sh. Om Prakash Sharma appears to be proved.
Now, therefore, I, Amit Singla, being the Disciplinary Authority in this case tentatively disagree with the findings of the Inquiry Officer as regard to Article-II. However, a final decision will be taken after considering the comments of the C.O. Shri Om Prakash Sharma, TGT (N. Sc.), (Retd.), is hereby directed to submit his written representation, if any, within 10 days of the receipt of this Disagreement Note, failing which the matter will be processed without any further notice/information to him in this matter. The copy of the Inquiry Report is also enclosed herewith."
6. The applicant submitted a detailed representation to the disciplinary authority against the disagreement note vide his Annexure A-9 letter dated 11.05.2012. The disciplinary authority, namely, the President of India, however, was not satisfied with the representation of the applicant against the disagreement note and finally, vide its impugned Annexure A-1 order dated 09.12.2014, imposed the penalty of "withholding of 100% of the monthly pension otherwise admissible to the applicant on a permanent basis" upon the applicant. His entire gratuity was also ordered to be withheld. While passing the impugned Annexure A-1 order, the disciplinary 6 authority had taken the advice of the Union Public Service Commission (UPSC), which is evident from paragraph (6) of the ibid order.
7. Pursuant to the notices issued, the respondents entered appearance. However, only respondent Nos. 2 & 3 have filed their reply, to which the applicant has filed a rejoinder.
8. On completion of pleadings, the case was taken up for hearing the arguments of the parties on 01.08.2018. Arguments of Mr. M K Bhardwaj, learned counsel for applicant and Mr. Saurabh Chadda, learned counsel for respondent Nos. 2 & 3 were heard. There is no representation on behalf of respondent No.1.
9. Mr. M K Bhardwaj, learned counsel for applicant basically pleaded the following three important grounds:-
a) The issues raised by the applicant in his Annexure A-9 representation to the disagreement note have not been considered by the disciplinary authority and the Annexure A-1 order has been passed without taking into account the issues raised.
b) The UPSC advice, a copy of which is at pp.33-34, has not been made available to the applicant and, thus, the law laid down by the Hon'ble Apex Court in Union of India & others v. S K Kapoor, (2011) 4 SCC 589 has been violated; and
c) The disciplinary authority, namely, the Director of Education, had earlier issued the disagreement note dated 08.04.2011, which was subsequently withdrawn and a second disagreement note was issued 7 by the new Director of Education on 26.04.2012 and hence, issuance of second disagreement note was not in order.
He, thus, stated that for this reason itself, the Annexure A-1 order deserves to be quashed and set aside.
10. Mr. Bhardwaj further argued that in view of the quashment and setting aside of Annexure A-1 order, the entire proceedings would also collapse in terms of the law laid down by the Hon'ble Apex Court in Chairman-cum-M.D., Coal India Ltd. & others v. Ananta Saha & others, 2011 (3) SLR 176. He particularly drew our attention to paragraph 30 of the said judgment, which reads as under:-
"30. It is a settled legal proposition that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same. In such a fact-situation, the legal maxim "sublato fundamento cadit opus" is applicable, meaning thereby, in case a foundation is removed, the superstructure falls."
11. Per contra, Mr. Saurabh Chadda, learned counsel for respondent Nos. 2 & 3 stated that the disagreement note was challenged by the applicant earlier in O.A. No.671/2013. The Tribunal, however, dismissed the said O.A. and held issuance of second disagreement note as legally valid, as could be seen from paragraph 12 of the judgment delivered on 18.11.2013 in the said O.A., which is extracted below:-
"12. Since, in the meanwhile, there has been a change of the incumbent Disciplinary Authority, and the applicant had neglected to respond to the Memorandum dated 15.04.2001 for nearly one year, he cannot now be allowed to plead that the incumbent Director of Education as on 26.04.2012 could not have applied his mind to the applicant's case, and passed the order, which he has passed by way of 8 the impugned Disagreement Note, with which the applicant is aggrieved."
12. The learned counsel further argued that the applicant has not been acquitted in the criminal case honourably and that he has been acquitted on the basis of benefits of doubt.
13. We have considered the arguments of learned counsel for the parties and perused the pleadings.
14. Without going into the other issues raised by the learned counsel for parties during the course of arguments as well as in their rival pleadings, we find that the copy of the UPSC advice was not served upon the applicant for his representation against it before the impugned Annexure A-1 order was passed by the disciplinary authority. Hence, the law laid down by the Hon'ble Apex Court in S K Kapoor's case (supra) has not been followed. Therefore, on this ground alone, the Annexure A-1 order deserves to be quashed and set aside.
15. Accordingly, we quash and set aside the Annexure A-1 order dated 09.12.2014 with liberty to the disciplinary authority to furnish a copy of the UPSC advice to the applicant for his representation and pass an appropriate order after considering such representation.
16. The O.A., to this extent, stands allowed. No costs.
( S N Terdal ) ( K.N. Shrivastava ) Member (J) Member (A) /sunil/